139 F.3d 12 (1st Cir. 1998), 97-1715, Sinnott v. Duval

Docket Nº:97-1715.
Citation:139 F.3d 12
Party Name:Jeffrey SINNOTT, Petitioner, v. Ronald DUVAL, Respondent.
Case Date:March 17, 1998
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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139 F.3d 12 (1st Cir. 1998)

Jeffrey SINNOTT, Petitioner,


Ronald DUVAL, Respondent.

No. 97-1715.

United States Court of Appeals, First Circuit

March 17, 1998

Heard Jan. 5, 1998.

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Max D. Stern, Boston, MA, for Petitioner.

William J. Meade, Assistant Attorney General, Criminal Bureau, with whom Scott Harshbarger, Attorney General, Boston, MA, was on brief, for Respondent.

Before BOUDIN, Circuit Judge, COFFIN, Senior Circuit Judge, and SHADUR, Senior District Judge. [*]

COFFIN, Senior Circuit Judge.

In this appeal from a district court denial of a petition for habeas corpus, brought under 28 U.S.C. § 2254, 1 petitioner Jeffrey Sinnott seeks to set aside his 1987 conviction for first degree murder based on "extreme atrocity and cruelty." He was indicted in 1983, along with a co-defendant, Gary E. Mosso, 2 for the murder of Anthony Tamburro, and found guilty by a Massachusetts Superior Court jury in 1984, the judgment being affirmed by the Massachusetts Supreme Judicial Court in Commonwealth v. Sinnott, 399 Mass. 863, 507 N.E.2d 699 (1987). After post-conviction proceedings were resolved

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against him, he initiated this action in the district court for the District of Massachusetts.

Two asserted trial errors are before us: (I) introduction into evidence of a written statement of the non-testifying co-defendant, Mosso, in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); and (II) certain jury instructions concerning malice, alleged to have improperly reduced the Commonwealth's burden of proof. As to each, the question we address is whether any error had a substantial and injurious effect or influence on the jury's determinations. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1721-22, 123 L.Ed.2d 353 (1993). We have concluded that in each case the answer is "No." 3

I. Factual Background

Our analysis will require detailed review of certain areas of evidence, but we here sketch the general scenario to give context. This criminal prosecution stemmed from a fight in the early morning of December 9, 1983 in a parking lot behind a nightclub in Oxford, Massachusetts, Kastle's Keep, where the attractions were drinking, dancing, and listening to a band, "The Fools." James Peloquin and his friend, Anthony Tamburro, arrived at Kastle's Keep at 8:30 in the evening of December 8, and at about 1:30 a.m. went to Tamburro's car in the parking lot to get a demonstration tape of another band. They encountered a group of three men, petitioner and co-defendants Mosso and Blanchard.

Conversation then took place with Tamburro concerning the purchase of some cocaine. Soon Mosso purchased a half gram for fifty dollars. Shortly thereafter, he complained about the quality and wanted his money back. A fight started between Tamburro and Mosso, and Tamburro fell or was thrown on the ground, where he was repeatedly struck by Mosso. At this point petitioner intervened, kicking Tamburro in the face. The extent of petitioner's continued participation is the focus of much of the testimony. Suffice it to say here that after only several minutes, Tamburro was rendered inert and unconscious, suffering from abrasions, bruises, lacerations, hemorrhaging and fractures, the injured areas ranging from cranium to testes. Mosso and petitioner, in a car driven by Blanchard, sped away from the scene as several persons summoned by Peloquin came out from the Keep. Tamburro soon stopped breathing, was administered oxygen, received CPR ministrations, and was taken to a hospital where he was pronounced dead at about 2:52 a.m.

II. The Bruton error

The first error alleged by petitioner is the trial court's admission of a written statement given the police by Mosso. Petitioner submitted his own written statement to police in which he said that he had kicked Tamburro only once with the side of his foot, then had stepped aside, trying to keep others from interfering. Meanwhile, Tamburro was getting "beat bad" by Mosso. Mosso's statement represented petitioner as jumping in, early in the fray, and repeatedly kicking for several minutes while he, Mosso, was trying to persuade him to withdraw. Mosso ascribed all injuries inflicted on Tamburro to petitioner. Neither petitioner nor Mosso testified, and objection to admission of Mosso's statement was properly made.

  1. Guidelines of Review

    While there was a misimpression of the admissibility of Mosso's statement at the trial stage of this litigation, based on no longer applicable caselaw, it is now undisputed that admission of the incriminating statement violated the Confrontation Clause of the Sixth Amendment because petitioner was deprived of the opportunity of cross examination. See Bruton, 391 U.S. at 137, 88 S.Ct. at 1628-29.

    The Supreme Court has made it clear that on collateral review of habeas cases involving trial error, the test for harmless error is not so rigorous as that demanded by Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) (where the prosecution

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    must establish harmlessness beyond a reasonable doubt), but follows the standard enunciated in Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946): did the error have "substantial and injurious effect or influence in determining the jury's verdict"? Brecht, 507 U.S. at 631, 637, 113 S.Ct. at 1718, 1722.

    In arriving at this conclusion, the Court observed that a constitutional violation occurring during presentation of the case to the jury is amenable to harmless-error analysis because it " 'may ... be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].' " Id. at 629, 113 S.Ct. at 1717 (citing Arizona v. Fulminante, 499 U.S. 279, 307-308, 111 S.Ct. 1246, 1263-64, 113 L.Ed.2d 302 (1991)). While the Court determined that habeas relief should not be granted based on merely a "reasonable possibility" that the error contributed to the verdict, id. at 637, 113 S.Ct. at 1721-22, it also recognized that relief should not be denied simply because a reviewing court felt that a petitioner "would have been convicted even if the constitutional error had not taken place." Id. at 642, 113 S.Ct. at 1724 (concurring opinion of Justice Stevens, who cast the deciding vote). As we said in Gilday v. Callahan, 59 F.3d 257, 269 (1st Cir.1995),

    [W]e ... must consider--to restate the Brecht standard--whether the error was of such magnitude that it actually casts doubt on the integrity of the verdict. This is the difference between a possibility and a probability.

    Moreover, our review is plenary and the burden of establishing harmlessness is on the prosecution. O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 994-95, 130 L.Ed.2d 947 (1995).

    We derive some additional guidance for our review from Kotteakos itself. We are told that errors "conceivably may be altogether harmless in the face of other clear evidence, although the same error might turn scales otherwise level." 328 U.S. at 763, 66 S.Ct. at 1247. A court must have "the conviction ... that the error did not influence the jury, or had but very slight effect...." Id. at 764, 66 S.Ct. at 1248. The Court's careful comparative weighing to distinguish a case in which the same error resulted in a reversal, Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), see 328 U.S. at 766-74, 66 S.Ct. at 1248-52, informs our own analysis of the likely impact of the offending evidence.

  2. The Evidence

    The question we must consider, therefore, is whether admission of Mosso's statement implicating petitioner as the primary combatant had such a "substantial and injurious effect or influence" that it "casts doubt on the integrity of the verdict." Central to this issue is the evidence concerning the extent and nature of petitioner's involvement in the fracas and his state of mind. We shall examine in detail the relevant testimony of four non-party eyewitnesses, that of the pathologist who conducted the autopsy, written statements given the police by both petitioner and Mosso, and the closing argument of the prosecutor, who commented on the two defendants' statements. We shall then assess the likely impact of the admission and use of the Mosso statement.

    (1) Eyewitness Testimony. We begin by identifying the crucial and relevant testimony of each of the four non-party witnesses as to the participation of petitioner in the beating of Tamburro. It is clear that the full import of the testimony cannot be adequately conveyed by merely listing the varying number of blows or kicks that each witness saw petitioner inflict. For not only did the witnesses observe for different periods of time, but the surrounding circumstances also add relevant detail. And since our task is to gauge the probability of Mosso's statement having had a substantial effect on the jury's deliberations, we strive to have as complete a picture in mind as did the jury.

    James Peloquin was the first witness. A good friend of the victim, he was on the scene at the very beginning and remained until very nearly the end. From 8:30 p.m. until 1:30 a.m. he had only three alcoholic drinks. These are the major points he made:

    -- After Mosso complained of the quality of the cocaine Tamburro had sold him, he

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    demanded a sample of Tamburro's personal supply and was offered a "taste." He accused Tamburro of not trusting him, and then took off his jacket. Petitioner took off his own jacket, saying, "So it is going to be one of those."

    -- Mosso then hit Tamburro in the face, Tamburro struck back, hitting him lightly, the two wrestled, and Tamburro tripped and fell with Mosso on top of him. Mosso pinned Tamburro's left arm and head, and...

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